Topor Contracting, Inc.

National Labor Relations Board - Board Decisions

Sep 19, 2005

345 N.L.R.B. 60 (N.L.R.B. 2005)

345 NLRB No. 60
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Topor Contracting, Inc. and International Union of
Operating Engineers, Local 17. Case 3–CA–
24557
September 19, 2005
ORDER DENYING MOTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The Acting General Counsel seeks a default judgment
in this case on the ground that the Respondent has failed
to file an answer to the complaint. Upon a charge filed
by the Union on November 14, 2003, the General Coun-
sel issued the complaint on May 19, 2005, against Topor
Contracting, Inc., the Respondent, alleging that it has
violated Section 8(a)(5) and (1) of the Act. The Respon-
dent failed to file an answer.
On July 26, 2005, the Acting General Counsel filed a
Motion for Default Judgment with the Board. On July
27, 2005, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent filed
no response.
Ruling on Motion for Default Judgment
We deny the Acting General Counsel’s motion be-
cause the Acting General Counsel has failed to prove
service of the complaint or the Motion for Default Judg-
ment on the Respondent. The Acting General Counsel’s
motion alleges that the complaint was served upon the
Respondent by certified mail. In support, the Acting
General Counsel has attached to his motion various
documents. We find, however, that the documents do
not establish that the complaint and other correspondence
from the General Counsel and Acting General Counsel
were sent to the Respondent’s correct address.1
The charge states that the Respondent’s address is 153
Filmore Avenue, Buffalo, New York, 14210. The affi-
davit of service attached to the charge, however, states
that it was served on the Respondent at 153 Fillmore
Avenue, Buffalo, New York, 14207.
Further, the affidavit of service attached to the com-
plaint states that it was served on the Respondent by cer-
tified mail, return post office receipt requested, at 153
Fillmore Avenue, Buffalo, New York, 14207; 153 Fill-
more Avenue, Buffalo, New York, 14210; and 143 Fill-

1 The record does not show that the Respondent has been represented
by counsel during these proceedings.
more Avenue, Buffalo, New York, 14207. In addition,
the Acting General Counsel has attached to his motion
copies of two letters, dated June 8 and July 1, 2005, ad-
vising the Respondent that a complaint against it had
issued, that no answer had been filed, and that unless the
Region received an answer by June 15 and July 8, 2005,
respectively, a motion for default judgment would be
filed. The June 8 letter was sent by certified mail to the
Respondent at 153 Fillmore Avenue, Buffalo, New York,
14210; 143 Fillmore Avenue, Buffalo, New York,
14210; and 851 Eagle Street, Buffalo, New York, 14210.
The July 1 letter was sent by certified mail to the above
addresses, and also to 153 Fillmore Avenue, Buffalo,
New York, 14207.2 The Acting General Counsel did not
submit return post office receipts for the complaint or the
reminder letters, and there is no indication in the papers
before us whether these documents were actually deliv-
ered or returned by the Postal Service.
Finally, the Acting General Counsel did not submit an
affidavit of service with the Motion for Default Judg-
ment. Section 102.24(a) of the Board’s Rules and Regu-
lations states that all motions filed with the Board shall
be accompanied by an affidavit of service on the parties.
In view of the inconsistencies in both the street ad-
dresses and zip codes to which the General Counsel and
Acting General Counsel have sent documents to the Re-
spondent, the absence of return post office receipts or
any indication whether the documents were delivered or
returned by the Postal Service, the Acting General Coun-
sel’s failure to submit an affidavit of service of the Mo-
tion for Default Judgment, and considering the Respon-
dent’s pro se status, we find that the Acting General
Counsel has failed to demonstrate that service of the
complaint and Motion for Default Judgment was per-
fected.
Accordingly, we deny the Acting General Counsel’s
motion, without prejudice to its renewal when it can be
demonstrated that the Respondent has been properly
served with the complaint and Motion for Default Judg-
ment.3

2 The July 1 letter was also sent by regular mail. There is no indica-
tion in the papers before us whether it was actually delivered or re-
turned by the Postal Service. Compare I.C.E. Electric, Inc., 339 NLRB
247 fn. 2 (2003) (the failure of the Postal Service to return documents
sent by regular mail establishes actual receipt).
3 It will not be necessary to establish that the Respondent actually
received these documents; all that is required is sufficient evidence that
service was perfected at the Respondent’s correct address. See CCY
New Worktech, Inc., 329 NLRB 194 (1999).
DECISIONS OF THE NATIONAL ALBOR RELATIONS BOARD2
Dated, Washington, D.C. September 19, 2005
Robert J. Battista, Chairman
Wilma B. Liebman, Member
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD